EXHIBIT 10.52
TRUST AGREEMENT
Establishing
THE
TRUST
BY AND BETWEEN
XXXXXX WIRE & CABLE COMPANY
(FOR THE SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN)
and
CG TRUST COMPANY
TABLE OF CONTENTS
PAGE
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Section 1 Establishment of Trust 1
Section 2 Payments to Plan Participants 2
and Their Beneficiaries
Section 3 Trustee Responsibility Regarding 3
Payments to Trust Beneficiary
When Company is Insolvent
Section 4 Payments to Company 4
Section 5 Investment Authority 4
Section 6 Disposition of Income 4
Section 7 Accounting by Trustee 5
Section 8 Responsibility of Trustee 5
Section 9 Compensation and Expenses of Trustee 6
Section 10 Resignation and Removal of Trustee 6
Section 11 Appointment of Successor 7
Section 12 Amendment or Termination 7
Section 13 Payment of Incurred Expenses 8
Section 14 Miscellaneous 8
Section 15 Effective Date 9
(a) This Agreement made this first day of January, 2001, by and between
Xxxxxx Wire & Cable Company (the "Company") and CG Trust Company, a
trust company organized under the laws of the State of
Illinois with
its principal office and place of business in Chicago,
Illinois (the
"Trustee");
(b) WHEREAS, Company has adopted the Xxxxxx Wire & Cable Company
Supplemental Excess Defined Benefit Plan (the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in
such Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust" or "Trust Fund") and to contribute to the Trust assets that
shall be held herein, subject to the claims of Company's creditors in
the event of Company's insolvency, as herein defined, until paid to
Plan participants and their beneficiaries in such manner and at such
times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plan as an unfunded plan maintained for the purpose of providing
benefits for a select group of management or highly compensated
employees for purposes of Title I of the Employee Retirement Income
Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist in the meeting
of its liabilities under the Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust certain good and valuable
consideration, which shall become the principal of the Trust to be
held, administered and disposed of by Trustee as provided in this
Trust
Agreement.
(b) The Trust hereby established shall be revocable by the Company; it
shall become irrevocable upon a Change of Control, as defined herein.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
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(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Before a Change in Control, (i) plan
participants and their beneficiaries shall have no preferred claim on,
or any beneficial ownership interest in, any assets of the Trust, (ii)
any rights created under the Plan and this
Trust Agreement shall be
mere unsecured contractual rights of Plan participants and their
beneficiaries against Company, (iii) any assets held by the Trust will
be subject to the claims of Company's general creditors under federal
and state law in the event of insolvency, as defined in Section 3(a)
herein.
(e) Upon a Change of Control, Company shall, as soon as possible, but in no
event longer than thirty (30) days following the Change of Control, as
defined herein, make an irrevocable contribution to the Trust in an
amount that is sufficient to pay all Plan participants and their
beneficiaries the aggregate accrued benefits to which they would be
entitled pursuant to the Plan as of the date of the Change of Control
(whether or not they are then entitled to receive such accrued
benefits), and shall thereafter make further irrevocable contributions
to the Trust on a current basis as and in the amount that such benefits
accrue. The Trustee shall have no responsibility for enforcing the
Company's obligation to make payment of any contribution to the Trust,
for the timing or amount thereof, or for the adequacy of the Trust to
meet or discharge any liabilities of the Plan.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of each Plan participant
(and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as provided for
or available under the Plan), and the time of commencement for payment
of such amounts. Except as otherwise provided herein, Trustee shall
make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall make
provisions for reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the payment
of benefits pursuant to the terms of the Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Company or such party as
it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the
Plan.
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(c) Company may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan.
Company shall notify Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants
or their beneficiaries. Trustee shall require Company to provide
reasonable written documentation that such payments have been made
directly to such participant or beneficiary. In addition, if the
principal of the Trust, and any earnings thereon, are not sufficient to
make payments of benefits in accordance with the terms of the Plan,
Company shall make the balance of each such payment as it falls due.
Trustee shall notify Company where principal and earnings are not
sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary When
Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Company is insolvent. Company shall be considered
"insolvent" for purposes of this
Trust Agreement if (i) Company is
unable to pay its debts as they become due or (ii) Company is subject
to a pending proceeding as a debtor under the United States Bankruptcy
Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Company under federal and
state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Company
shall have the duty to inform Trustee in writing of Company's
insolvency. If a person claiming to be a creditor of Company
alleges in writing to Trustee that Company has become insolvent,
Trustee shall determine whether Company is insolvent and, pending
such determination, Trustee shall discontinue payment of benefits
to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's insolvency, or
has received notice from Company or a person claiming to be a
creditor alleging that Company is insolvent, Trustee shall have no
duty to inquire whether Company is insolvent. Trustee may in all
events rely on such evidence concerning Company's solvency as may
be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Company's
solvency.
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(3) If at any time Trustee has determined that Company is insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this
Trust
Agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as
general creditors of Company with respect to benefits due under
the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this
Trust
Agreement only after Trustee has determined that Company is not
insolvent (or is no longer insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Plan participants or their beneficiaries under the terms of the Plan
for the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants and their beneficiaries by Company
in lieu of the payments provided for hereunder during any such period
of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become irrevocable,
Company shall have no right or power to direct Trustee to return to Company or
to divert to others any of the Trust assets before all payment[s] of accrued
benefits (present and future) have been made to Plan participants and their
beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
Trustee shall have the power to invest the assets of the Trust Fund in such
investment vehicles as directed by the Company, including insurance policies or
securities (including stock or rights to acquire stock) or obligations issued by
Company. All rights associated with assets of the Trust shall be exercised by
Trustee or the person designated by Trustee pursuant to the Company's direction,
and shall in no event be exercisable by or rest with Plan participants.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of expenses
and taxes, shall be accumulated and reinvested.
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Section 7. Accounting by Trustee.
The Trustee has accepted this Trust on the condition that the Company has
entered or is entering into a service agreement with Connecticut General Life
Insurance Company ("Connecticut General") whereby Connecticut General will
provide recordkeeping services for all assets held pursuant to this
Trust
Agreement. The Trustee shall be required to forward to the Company, or require
Connecticut General to forward to the Company, the recordkeeping reports and
related financial information provided by Connecticut General, but the Trustee
shall not otherwise be required to provide Trust accounts.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like
aims, provided, however, that Trustee shall incur no liability to
any person for any action taken pursuant to a direction, request
or approval given by Company or any delegate appointed by the
Company which is contemplated by, and in conformity with, the
terms of the Plan or this Trust and is given in writing by
Company or its delegate. In the event of a dispute between
Company and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee
against Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating
thereto and to be primarily liable for such payments. If Company
does not pay such costs, expenses and liabilities in a reasonably
timely manner, Trustee may obtain payment from the Trust.
(c) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist
it in performing any of its duties or obligations hereunder,
including recordkeeping, reporting, custody of assets or proxy
voting. Such agents may include affiliates of the Trustee.
(d) Trustee shall have, without exclusion, all powers conferred in
Trustees in accordance with applicable law, unless expressly
provided otherwise herein, provided, however, that if an
insurance policy is held as an asset of the Trust, Trustee shall
have no power to name a beneficiary other than the Trust, to
assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor trustee, or to loan to
any person the proceeds of any borrowing against such policy.
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(e) The Company shall indemnify and hold harmless the Trustee from
and against any and all claims, losses, damages, expenses
(including reasonable counsel fees) and liability to which the
Trustee may be subject by reason of any act done or omitted to be
done, except where the same is finally adjudicated to be due to
the negligence or willful misconduct of the Trustee.
(f) In addition to and in no way in limitation of the indemnification
of paragraph (e) of this section, the Company hereby agrees to
indemnify and hold harmless the Trustee from and against any
claims, losses, damages, expenses (including reasonable counsel
fees) and liability to which the Trustee may be subject by reason
of any act or omission of any prior, subsequent or existing
trustee of the Plan.
(g) The Trustee shall be responsible only for such assets as are
actually received by it as Trustee hereunder. The Trustee shall
have no duty or authority to ascertain whether any contributions
should be made to it pursuant to the Plan or to bring any action
to enforce any obligation to make any such contribution, nor
shall it have any responsibility concerning the amount of any
contribution or the application of the Plan's contribution
formula. The Trustee shall have no responsibility for any assets
not held under this Trust, even if those assets are held as
assets of the Plan under a separate
trust agreement.
Responsibility for any such assets shall be solely that of the
trustees named in such separate
trust agreement, or, in the event
no such separate trust exists, the Company.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative and Trustees' fees and expenses in
accordance with a fee schedule provided to the Company. In addition, Trustee
shall be paid its reasonable expenses, including reasonable expenses of counsel
and other agents employed by the Trustee, incurred in connection with
administration of the Trust Fund. If the Trustee proposes an amended fee
schedule and the Company fails to object thereto within ninety (90) days of its
receipt, the amended fee schedule shall be deemed accepted by the Company. If
not paid, the fees and expenses shall be paid from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company,
which shall be effective 30 (thirty) days after receipt of such
notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 (thirty) days notice or
upon shorter notice accepted by Trustee.
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(c) The Trustee's service pursuant to this Agreement is conditioned
upon the existence of one or more contracts between the Company
and Connecticut General providing for full Plan recordkeeping
services. In the event the contract providing for such
recordkeeping services is discontinued or terminated, this
Trust
Agreement shall be terminated as well with no further notice from
either party to the other as of the date of discontinuance or
termination of the contract providing for Plan recordkeeping
services.
(d) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within
30 days after receipt of notice of resignation, removal or
transfer, unless Company extends the time limit.
(e) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraph(s) (a), (b) or (c) of this
section. If no such appointment has been made, Trustee may apply
to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 11. Appointment of Successor.
If Trustee resigns or is removed in accordance with Section 10(a), (b) or (c)
hereof, Company may appoint any third party, such as a bank trust department or
other party that may be granted corporate trustee powers under state law, as a
successor to replace Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have all of
the rights and powers of the former Trustee, including ownership rights in the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by Company or the successor Trustee to evidence the
transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plan or
shall make the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of
the Trust any assets remaining in the Trust shall be returned to
Company.
(c) If and when the Trust becomes irrevocable as provided herein, any
amendment of this Agreement will require the approval of at least
80 percent of the Plan Participants (or their beneficiaries).
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Section 13. Payment of Incurred Expenses
So long as the Participant is not acting in bad faith, the Company shall
promptly pay as they are incurred by each Plan Participant any Expenses arising
from or related to any action, suit, or proceeding filed by a Participant to
enforce his or her rights under this Agreement or Plan ("Claim"). "Expenses"
shall mean all costs, expenses (including attorney's fees, witness fees and
investigative costs) and obligations paid or incurred in connection with or
relating to a Claim (including all interest, assessments and other charges paid
or payable in connection with or in respect of any of the foregoing).
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or
subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
(c) This Trust Agreement and the Trust hereby created shall be
governed, construed, administered and regulated in all respects
in accordance with the laws of
Illinois.
(d) For purposes of this Trust, the term "Change of Control" shall
mean (i) the occurrence of a Triggering Event under the Rights
Agreement of July 6, 1995 between Xxxxxx, Inc. and the Xxxxx
Xxxxxx Shareholder Services, LLC, (successor to First Chicago
Trust Company of New York), as such Rights Agreement may be
assigned or amended, or (ii) the purchase or other acquisition by
any person, entity or group thereof, within the meaning of
Section 13(d) or 14(d) of the Securities Exchange act of 1934
("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of 25 percent or more of either outstanding shares of common
stock or the combined voting power of Company's then outstanding
voting securities entitled to vote generally, (iii) the approval
by the stockholders of the Company of a reorganization, merger,
or consolidation, in each case, with respect to which persons who
were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than 60 percent of the combined voting power
entitled to vote generally in the election of directors of the
reorganized, merged or consolidated Company's then outstanding
securities, or (iv) a liquidation or dissolution of Company or of
the sale of all or substantially all of the Company's assets.
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The Board of Directors and the Chief Executive Officer of the
Company shall have a duty to inform Trustee in writing of any
Change of Control. Unless Trustee has actual knowledge of
Company's Change of Control, or has received notice from the
Company that a Change of Control has occurred, Trustee shall have
no duty to inquire whether a Change of Control has occurred.
(e) In the event of any conflict between provisions of the Plan and
those of this Trust Agreement, this Trust Agreement shall
prevail.
Section 15. Effective Date.
The effective date of this Trust Agreement shall be January 1, 2001.
Attest: BELDEN WIRE & CABLE COMPANY
/s/ Xxxxxx X. Xxxxxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Its Vice President
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Date March 26, 2001
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Attest: CG TRUST COMPANY
/s/ By /s/
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Its
-------------------------------
Date
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